Divorces in general are difficult for all parties involved, even if a divorce would be “best” for both parties. Emotions run high and issues you did not think would become problems, could end up being in contention. Being calm and understanding every step of a divorce may be easier said than done, however it will truly help in handling a divorce from start to finish. Issues mainly in contention during a divorce include division of property, child support, child custody and possession/access of the child.
There are two types of divorce each case can fall under: uncontested and contested divorces. Uncontested divorces are considered agreed divorces, in which both parties agree to how the property is divided, who pays child support, when each parent will have possession and access of the child and on any other applicable issues. Uncontested divorces are generally quicker and easier as the process does not involve the filing of motions, prevents the need for hearings and allows both parties to negotiate amongst themselves, without intervention from the court, in most cases.
Contested divorces are for parties who are unable to reach an agreement. The length of time a contested divorce depends on each case and the issues pertaining to the divorce, property and children.
Steps in a Divorce:
The first step in initiating a divorce is to file an Original Petition for Divorce with the court. The Petition is a legal document that formally tells the court your intent to divorce your spouse. The Petition itself includes pertinent information such as your marriage date, separation date, reasons for separation, name and birthdates of the children, what property is owned and in which county and state you reside. The Petition must be filed in the correct venue which is the county one of the spouses has resided in for the last 90 days and lived in the state of Texas for 6 months or more. Once the Petition is filed, the other spouse must be given notice through process of service. Once served, the other spouse must provide an answer and can even file a counterclaim. The court cannot grant a divorce until 60 days after a Petition for Divorce has been filed.
A judge can grant a divorce based on various reasons, including but not limited to one spouse being cruel, has abandoned or even cheated on the other spouse. Another option the judge has is to annul the marriage and declare that the marriage as invalid. The grounds for an annulment can include: fraud used by one party, the petitioner lacked the mental capacity or was under the influence of drugs or alcohol to agree to the marriage, known impotency of one party and concealment of a prior divorce.
From the time the Petition is filed and the process is initiated to the time the divorce is final can range from months to years. In order to make sure some “guidelines” are in place where both parties must follow at the behest of the court, Temporary Orders should be requested by either party. Temporary Orders can include:
- Orders for temporary spousal or child support;
- Orders forbidding either party from increasing unnecessary debt;
- Orders forbidding family violence or from a party harassing another and their family and friends;
- Orders for parties to attend counseling or to attend parenting classes;
- Orders regarding possession and access of the children.
As the name suggests, these orders are temporary unless both parties agree to finalize them.
While a divorce is pending, parties can agree or the court may order Mediation to be conducted as it could potentially speed up the divorce process. Mediation involves a neutral third party, the Mediator. The mediator will go back and forth between each party and their attorney, informing each party of the other’s proposal for settling the issues at hand. In the end, if both parties come to an agreement, a Mediated Settlement Agreement is drafted, signed by each party and binding. The agreement is later drafted into a final decree and entered with the court.
Depending on the amount of property at issue in a divorce, the division of property can either be extremely difficult or very easy. Property in a divorce is characterized into two categories: separate property and community property. Separate property includes property owned by a party prior to marriage or acquired during the marriage through gift or inheritance. Community property includes property acquired during the marriage and income earned during the marriage. The court may not award a spouse’s separate property to the other spouse, unless some form of agreement is reached.
Courts will divide the property, on what they believe is just and right. Factors that could affect a court’s decision: who was awarded custody, history of family violence, adultery, length of marriage, etc.
Both parties are liable for debts owed/created during the marriage. Although a court can order one party to be responsible for certain debts, creditors can still go after either party for the debts, despite any agreement reached or ordered.
Child Custody, Visitation and Support:
Divorces become much more complicated when children are involved. The court would like to keep a control on these complications as well as look out for the children involved, as they will always have the best interest of the child. In order to avoid having to follow a set schedule set out in the family guidelines, parties who can reach agreement should decide amongst each other how they would like to handle possession and access. The courts will decide a schedule for the parents if they cannot agree, based on what they believe would be in the best interest of the child. Courts decide based on each case and depend on: what the child desires, abilities of the each parent, if the child is in emotional or physical danger, what the child will need emotionally and physical and what each parent has planned out if they were to receive custody of the children, or be ordered primary.
Child support is another issue at contention in most cases. If the parties cannot agree to how much child support should be paid by the obligor parent, then the court will base the amount on the Texas Family guidelines. Child support is calculated based on how many children are the subject of the suit, how much income the obligor is currently making and if the obligor is also paying child support. The formula provides a number that the obligor must pay and the court cannot order more than the guidelines unless they believe it would be in the best interest of the child to deviate. Once child support is ordered, payments must be continued until generally the child reaches the age of eighteen.
Overall, divorces are difficult for all parties involved. If you believe that a divorce is in you and your child’s best interest, do not let the process scare you. Consult with and find an attorney who can help you navigate these difficult waters and reach the goal you desire.
With a track record of consistent success, helping thousands of clients over the years, the attorneys at Modjarrad | Abusaad | Said Law Firm are here to help clients with solutions on all kinds of family law disputes. Our attorneys have helped clients in Dallas, Collin, Denton, Tarrant, and Rockwall counties. We have represented mothers, fathers, and children for their family law disputes, helping all to a favorable outcome for their case. Contact us today to schedule a free consultation with a member of our family law team.